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North Carolina executions in limbo

“I just can’t get this idea about, ‘Well, they have to come up with some idea or something that this guy who’s being executed has no feeling or doesn’t hurt when he’s being executed.’ Where do they come up with something like that?” George Lane said. “It was cruel and unusual that they murdered him.” Dorothy, left, and George Lane think about George’s son, Mark Lane, in the framed photo, every day. Mark Lane was murdered in 1991.(Photo: Katie Bailey/bkbailey@citizen-times.com)Buy Photo

Sometimes it's a momentary jolt when he sees an old friend of his son's from high school. Or maybe it surfaces when he glances at the framed picture of his son, appearing so young and strong in his red Erwin High wrestling singlet, looking into the camera with a young man's confidence, the kind cemented by a state championship.

Other times, George Lane just sort of drifts off in his mind, maybe wondering how many kids his boy would have now, and if they, too, would be fearless and fun-loving. With all his heart, Lane believes the only solace — the only real closure, if life truly offers such a thing — he and his wife, Dorothy, will ever have will come only when Mark's killer is put to death, as the state mandated in 1992.

Mark Lane(Photo: Special to the Citizen-Times)

"You think about it every day, every time you pick up the paper and you see a murder or a death penalty, not just in this state but in any state, where somebody has slipped through the cracks," Lane said, sitting in the office of his store, Leicester Pawn & Gun. "And you wonder when you're going to get the letter that says he slipped through the cracks and he's now been relieved of his death penalty.

"You think, 'Why does he have the right to do that, when 12 persons on a jury convicted him of first-degree murder and they determined that he should receive the death penalty?'"

Like several other states, North Carolina is struggling with its death penalty and what will happen to the 150 prisoners on death row, including nine men from Buncombe County. Another man sits on federal death row.

The Tar Heel state has not had an execution since 2006, and the death penalty is mired in a de facto moratorium while lawyers and judges sort out legal cases pinned to two separate issues: the makeup of juries and possible discrimination against blacks being litigated under the now-defunct Racial Justice Act, and the legality and constitutionality of our death penalty drug protocol.

"There's no official moratorium — the legislature has never said it's going to halt executions — there are just so many court cases and litigation that nothing has happened, and nothing is scheduled," said Keith Acree, a spokesman for the N.C. Department of Public Safety, which oversees corrections.

Historically, North Carolina has not been reluctant to employ the death penalty. Since 1910, when the state took over executions from the counties, North Carolina has put to death 404 men and women, including 43 between 1984 and 2006, according to the N.C. Department of Public Safety.

U.S. Supreme Court action essentially eliminated the death penalty in 1962, but it returned nationally in 1976 and in North Carolina in 1984.

Today, Mark Lane's killer, Edward Earl Davis, remains where he's resided since the early 1990s: on death row at Raleigh's Central Prison.

Davis, 58, and his half-brother, Roger D. Hood, 42, were convicted in the Aug. 16, 1991, slaying of Lane, with Davis receiving the death penalty and Hood getting life in prison.

"I can't even imagine what it's like to lose a child," said Dorothy Lane, who's been married to George for 23 years. "But now, after so many years, I've seen it just come over George — I've seen him become so sad, so many times — I know you can't ever get over the death of a child."

The legal issues at hand

Ken Rose, senior staff attorney with the N.C. Center for Death Penalty Litigation in Raleigh, knows victims' families continue to endure stomach-churning grief, and he says those feelings are valid.

"But the death penalty is a public policy that has to involve a purpose for the society that is more than just revenge on a behalf of a particular person or family, no matter how much we sympathize with their loss," Rose said.

Two separate issues have sidetracked executions since 2007 and likely will for the foreseeable future.

"First and foremast is the lethal injection litigation, which has been ongoing since 2007," Rose said. "There have been two important injunctions imposed; the most recent in 2014, and that prohibits the state from executing anybody."

Litigation on that issue started in state court but is now in the federal court system.

One of the legal questions is whether the protocol for an execution — the specific manner in which lethal drugs are administered — has to go through the state rule-making process, Rose said.

Typically, any state agency enacting regulations has to put the proposed procedures through the public rule-making process, which usually involves publishing the proposal and taking public comment.

The question is whether that procedure applies in the death penalty protocol. That issue went to federal court and has now been remanded back to Wake County Superior Court for a decision.

The other related issue involves the separation of powers. The legislature has given "almost unlimited authority to the Secretary of Public Safety to devise and enact a protocol, as far as drugs can be procured, training of staff, and the credentials of staff," Rose said.

“... We've seen executions in several places that have been botched, in some cases taking over an hour or more.”

Ken Rose

"All of these things may seem esoteric, but the truth is we've seen executions in several places that have been botched, in some cases taking over an hour or more," Rose said.

Death penalty opponents also have questioned if the protocol constitutes "cruel and unusual punishment," which the U.S. Constitution prohibits.

Before the legal challenge, North Carolina had used a three-drug protocol to bring about death: a fast-acting barbiturate to relax the prisoner, followed by a paralytic drug, then a potassium chloride to stop the heart.

"The problem with that, we had argued, if the barbiturate does not work or is administered in error, then the person would be tortured and you wouldn't know it, because the paralytic makes a person unable to move, speak or able to do anything," Rose said.

In 2013, the Department of Public Safety adopted a single-drug protocol, but the issue remains in the court system.

The second thread of legal challenges surrounds the Racial Justice Act cases. Two cases are pending in the N.C. Supreme Court concerning the application of the act, while several others remain pending in superior court.

The Lanes and other families question why the act, passed in 2009 but then repealed two years later, even applies in many of these cases in which the convicted murderer and victim are of the same race.

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Richard Allen Jackson was convicted in the slaying of Karen Styles, a 22-year-old Western Carolina University graduate who set out for a jog in the Bent Creek Recreation Area near Lake Powhatan on Oct. 31, 1994. A deer hunter found her partially nude body 25 days later, duct-taped to a tree. Jackson, a dishwasher, was arrested and initially tried in Buncombe County, but a retrial was ordered after questioning of him as a suspect continued after his request for an attorney. A plea agreement was reached, but then the federal government took over the case, securing a conviction carrying the death penalty. Jackson remains on federal death row. His petition to vacate the sentence to the 4th U.S. Circuit Court of Appeals was denied in Feb. 11, 2011, and a petition for a rehearing was denied on April 11, 2011. The U.S. Supreme Court denied Jackson’s petition to hear the case in October 2012. Gary Fields

Edward Davis was convicted in 1992 of the shooting death of Mark Ronald Lane during a robbery at the Leicester pawn shop Lane’s father owned. Lane was shot three times after he drew a handgun on the would-be robber. Davis had been paroled in Ohio 10 months before the killing for a 1975 murder in which he stabbed a man to death during a burglary to steal the man’s television set. Special to the Citizen-Times

James Davis was convicted in the murders of Frank Knox, 62, Gerald Allman, 52, and Tony Balogh, 42, during a May 17, 1995, shooting rampage at the Union Butterfield plant. Davis had been fired two days earlier and returned for revenge, killing the three men and wounding two others with an M-1 carbine and a .380-caliber semiautomatic pistol in what was then Western North Carolina’s worst case of workplace violence. Special to the Citizen-Times

James Morgan was sentenced to death in 1999 for the murder of Patrina Lynette King, 34, on Nov. 26, 1997. King was stabbed 48 times with a broken malt liquor bottle at her mother’s house near downtown Asheville. Morgan was paroled in July 1990 from a life sentence on an unrelated second-degree murder conviction. Special to the Citizen-Times

Jamie Smith was convicted in 1996 of murder in a 1994 arson at Grace Apartments. Smith poured kerosene into the rear stairwell and first-floor stairway, starting a fire that killed David “Philip” Cotton and maimed two women. Smith claimed he did it to cover up an earlier mail theft there. He also was sentenced to death in 1998 for the rape and murder of 19-year-old Kelli Froemke, who was stabbed at least 64 times after she let Smith into her apartment under his guise of needing to use the phone. Special to the Citizen-Times

Lesley Warren was sentenced to death in 1995 for the strangulation death of his former Juvenile Evaluation Center counselor, Jayme Denise Hurley. Warren went to Hurley’s North Asheville residence and said he needed help. Hurley let him sleep on the couch. Her body was found almost two months later. Warren also received a death sentence for a murder in Guilford County and received a life sentence in South Carolina on a third murder. Authorities say he confessed to, but was never tried for, a murder in Sackets Harbor, N.Y. Special to the Citizen-Times

Lyle May was sentenced to death for the slayings of Valerie Sue Riddle and her 4-year-old son, Kelly Mark Laird Jr., in 1997. The victims were stabbed repeatedly, and their necks were broken. May told investigators he enjoyed killing the mother and son and that he killed the boy to spare him the memory of seeing his mother murdered. Special to the Citizen-Times

Phillip Davis pleaded guilty to murdering his aunt, Joyce Miller, 43, and cousin, Caroline Miller, 17, in 1996. Davis received the death sentence for killing Joyce Miller and a life sentence in the death of Caroline Miller. Davis shot Caroline Miller three times with a .32-caliber revolver. When Joyce Miller, a second-grade teacher, came home, he shot her once in the head and hacked at her body at least 12 times with a meat cleaver. Special to the Citizen-Times

Randy Atkins pleaded guilty in 1993 to killing his 8-month-old son, Lyle Atkins. He hit the baby repeatedly on the side of the head and slammed the child two or three times into the wall of the Woodfin trailer he and the child’s mother shared. He said he hit the child to stop the baby’s crying. Health professionals described it as the worst case of battered child syndrome they’d ever seen, that practically every long bone in Lyle’s body had been broken at some time. Special to the Citizen-Times

Terry Hyatt received two death sentences in 2000 for the 1979 robberies, rapes and murders of Betty Sue McConnell and Harriett Delaney Simmons. The case went unsolved until a man walked into the sheriff’s office in 1998 and admitted helping Hyatt abduct one of the women. He was the last person sentenced to death in Buncombe County. Special to the Citizen-Times

Mark Lane was shot at three times in 1991. Edward Earl Davis and his half-brother Roger D. Hood were convicted in the slaying, with Davis receiving the death penalty and Hood getting life in prison. Special to the Citizen-Times

George Lane thinks about his deceased son, Mark, while at work at his shop Leicester Gun & Pawn on Monday. George Lane says the only solace he will ever have is if his son's killer is put to death. Katie Bailey/bkbailey@citizen-times.com

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All of the nine Buncombe County prisoners on death row filed motions under the act to have their death sentences converted to life without parole. Statewide, four of these cases are on appeal to the N.C. Supreme Court, and Rose said decisions could come down any day the court is in session.

"In general the issue does not depend on the race of the defendant or the victim," Rose said. "It has been a practice in the state of excluding African-American jurors by prosecutors using pre-emptive strikes."

The implication is that juries therefore have not been truly representative of the population.

“People are entitled to a jury of their peers, and there is a perception that African-Americans see things differently.”

Sean Devereux

"The issue is about participation in the jury," said Sean Devereux, an Asheville attorney who has represented Davis in his post-conviction appeals. "People are entitled to a jury of their peers, and there is a perception that African-Americans see things differently."

Hard to understand

None of this placates the Lanes, and much of it seems like legal hair-splitting.

"My son did not get a reduction in his death sentence to life, and the man who took this away from him should not have this benefit, either," George Lane wrote to the Attorney General's office in 2013, after being notified of Davis' appeal under the Racial Justice Act.

No one disputes that Eddie Davis is a bad character. Before killing Lane, Davis was convicted of murder in the 1975 stabbing death of a 60-year-old man in Columbus, Ohio. He was paroled the year before he killed Mark Lane.

He and Hood conducted armed robberies at a McDonald's in Canton, as well as others in Georgia and Tennessee. Davis had escaped jail in Tennessee, where he was being held on a robbery charge, before the Lane murder.

The Lanes said trial testimony showed that Davis and Hood had been in their shop, at that time located farther west in the heart of the Leicester community, earlier in the day. They returned just before closing at 6 p.m. on Friday, Aug. 16, 1991.

Mark Lane, 22 at the time and never one to back down, was shot at three times, once in the hand and twice in the abdomen, and died. His girlfriend was in the shop with him.

"They made her get down like a dog and crawl into the office," Dorothy Lane said.

The men were arrested more than a week later in Savannah, Georgia, after a high-speed chase across two states.

George Lane said the convicts were cold-blooded and merciless, and that lack of empathy weighs heavily in his mind when it comes to Davis getting the death penalty and any potential suffering he may endure.

“Why should I care or the society care what kind of pain or agony he goes through when they’re putting him to death? My son had no choice of what his agony was...”

George Lane

"Why should I care or the society care what kind of pain or agony he goes through when they're putting him to death? My son had no choice of what his agony was when he was laying on the floor and they shot him the third time," Lane said. "So why does this enter into it? He's guilty. So if they shoot him by firing squad, or they hang him, or chop his head off, he's got it coming to him."

The bigger picture

Since 1976, when the ultimate penalty was reinstated in the U.S., America's prisons have put to death 1,397 people. But 18 states no longer have a death penalty, and another three have enacted moratoriums.

Recent exonerations of death row inmates, as well as botched executions, have begun to erode support for executions. Since 1973, 150 people have been exonerated and freed from death row in 26 states, including nine in North Carolina, according to the Death Penalty Information Center.

Studies have also found that minorities are much more likely to receive a death penalty.

Public opinion also seems to be shifting. A 2013 poll of 600 North Carolinians by Public Policy Polling found 68 percent of respondents support replacing the death penalty with life without parole if the offender had to work and pay restitution to the victim's family, while 63 percent supported repealing the death penalty if the money saved was redirected to effective crime fighting tools.

Devereux said the country may be reaching a point where the death penalty simply no longer makes sense, particularly from an economic standpoint.

Duke University released a study in 2009 that found the state could save at least $11 million annually by abolishing the death penalty. The average cost for housing a standard state prison inmate in North Carolina is almost $80 a day, while the estimate for a death row inmate is nearly $96 daily, according to the N.C. Department of Public Safety.

Studies have also shown the death penalty is not an effective deterrent to crime.

Devereux said Buncombe County, like much of North Carolina, saw an increase in death penalty cases in the 1990s because of state legislation that gave prosecutors little leeway in pursuing life in prison instead of the death penalty in cases involving an aggravating factor, such as another felony being committed during the murder.

Statewide, the number of death sentences in North Carolina has steadily declined, with three last year, one in 2013 and none in 2012. In 2011, three were handed down, compared to four in 2010, two in 2009 and one in 2008. The trend mirrors the nation — Amnesty International noted the number of death sentences nationwide "has been lower than any time since reinstatement of the death penalty in 1976."

Nationally, executions also have declined, from a high of 98 in 1999, to 43 executions in both 2011 and 2012.

At their shop on New Leicester Highway, the Lanes have an extensive video surveillance system, and most employees carry firearms.

The Lanes hope and pray for the only type of closure that will satisfy them: a letter from the state telling them that Davis' execution has been scheduled. Both are deeply religious, and they feel the Bible calls for harsh punishment for those who intend to deprive others of life, as George says, those who "wake up in the morning intending to do bad."

Only the ending of Davis' life would allow them to move on with theirs.

“It would give me closure to know that I don't have this still hanging over me ...”

George Lane

"It would give me closure to know that I don't have this still hanging over me and wondering what's going to happen," Lane said. "It's a part of my life that I could close."

History of executions in North Carolina

Public hangings were common in North Carolina until the state took over administration of the death penalty in 1910.

Walter Morrison, a laborer from Robeson County, became the first man to die in the electric chair in 1910. Between 1910 and 1961, the state executed another 361 people.

Since 1910, there have been three methods to carry out executions, all at Central Prison in Raleigh. For the first 28 years, the state used the electric chair. In 1936, the state first used the gas chamber. In 1983, inmates waiting for execution were allowed to choose lethal injection or the gas chamber. In 1998, lethal injection became the state's only method of execution.